Fact: If President Trump's border wall is funded, either large numbers of illegal immigrants will assist in its construction, ironically, or there won't be enough workers to build it. And that's before any national infrastructure plan adds additional large jobs to the plate of the Texas construction industry.

Fact: The feds have promised ramped up immigration enforcement and the Texas Legislature passed SB 4 (aka, the "show me your papers law") mandating greater law enforcement cooperation with immigration authorities and authorizing more aggressive police tactics toward illegal immigrants. Their stated aim was to increase the number of deportations of people picked up by law enforcement, even for minor traffic violations.

All of which leads to this observation:

Despite high-profile roundups after President Trump took office - sending ICE agents into Texas courthouses to arrest domestic violence victims, for example - as a practical matter the threat of mass deportations, at least in Texas, probably ended after Hurricane Harvey. Somebody actually must perform the labor involved in rebuilding America's fourth largest city.

White Texans aren't going to learn the skills to participate in the booming building trades overnight, nor would most of us be willing to endure the labor conditions typically involved in that industry. Anyway, we're basically at full employment already in Texas and there are only so many workers.

Regardless, just as Bush II was judged on Hurricane Katrina, President Trump will be judged in a major way based on how well he handles Harvey's aftermath. This president cares deeply about others' opinions about him, and IMO he will soon come to understand that what happens in Houston going forward will define his historical legacy.

In the medium term, once someone explains the labor market issues to him, Grits suspects Hurricane Harvey may turn out to stymie the President's anti-immigration fervor for the foreseeable future. And maybe even scrap the border wall, too, at least in Texas. It will be impossible to rebuild Houston while simultaneously deporting the construction industry's labor pool, much less build a pointless 18-30 foot high wall across the desert.

In the end, you can't do all the contradictory stuff he says - eventually you have to pick - and Hurricane Harvey in all likelihood just made a lot of President Trump's choices for him.

Tuesday, August 29, 2017

In our final excerpt from Just Liberty's August "Reasonably Suspicious" podcast, let's focus on a recent Texas appellate case regarding DNA mixture evidence - one of the first to arise since it was revealed in 2015 that most Texas crime labs were using flawed mathematics to interpret results from mixed DNA samples. The trial court punted on its gate keeping function in this one, allowing multiple, conflicting forensic results into evidence and telling the jury to pick the one they liked. Tyler's 12th Court of Appeals affirmed that approach. Listen to Grits and Texas Defender Service Executive Director Amanda Marzullo discuss the implications of the case:

In the case out of the 12th Court of Appeals, crime-lab analysts originally declared that the sample positively identified the defendant. But they had used the flawed mathematical methods which had been debunked by experts in 2015. When they corrected the math, applying a "stochastic threshold" to the data, the defendant was no longer implicated. Then, prosecutors introduced the results from a proprietary, third-party DNA mixture test - a black-box method using statistical models to which defense experts don't have access - and that method once again pointed to the defendant.

To make matters more confusing: There are two competing companies with proprietary black-box methods for analyzing DNA mixtures, and in one case out of upstate New York they came to opposite conclusions. While DNA matches involving a single suspect are considered the gold standard of forensic evidence, when DNA from multiple people is mixed there can be much more uncertainty about the result.

A panel of forensic experts convened by the White House under the Obama Administration called DNA mixture analysis "subjective" and "not yet ... sufficiently and appropriately validated." According to an addendum to their report, "the available literature supported the validity and reliability of [probabilistic genotyping] for samples with three contributors where the person of interest comprises at least 20% of the sample," but not when there are more than three contributors or the person of interest comprises a smaller portion of the sample.

The case out of the 12th Court of Appeals, however, did not reach those questions. It was based on a sufficiency-of-the-evidence challenge, not on the admissibility of particular DNA mixture analysis methods, concluded Marzullo. So Texas still lacks a formal appellate green light for admitting these disputed methods, though in some cases such as this one, they may get into evidence without being challenged by the defense.

Grits had noted when the Forensic Science Commission asked the Attorney General about the admissibility of forensics which are neither accredited nor exempt from accreditation. But I never noticed when the opinion came out in January. The AG says Texas courts would likely interpret the Code of Criminal Procedure to hold such forensic evidence inadmissible.

Sunday, August 27, 2017

Houston PD has stopped using flawed field tests responsible for hundreds of false convictions, but in most other Texas jurisdictions, nobody has even checked similarly situated cases for possible errors. (Only five counties have Conviction Integrity Units in the District Attorney's office, and of those only Harris County's has focused on drug cases.)

That's why Grits was interested in this article from July 28 in the McAllen Monitor on the Texas Department of Public Safety's retraction of a legislatively mandated decision to begin charging for crime lab services. Hidalgo County Sheriff J.E. "Eddie" Guerra told the paper that "HCSO frequently uses field testing on suspected controlled substances and only sends samples to DPS for analysis when an individual does not plead guilty to possession."

That's exactly the circumstance under which they found so many false convictions in Harris County!

More than 300 false convictions based on faulty field tests have been uncovered so far in Houston, and nobody thinks that's all of them. The typical situation involved field tests falsely accusing someone, then that person couldn't make bail and so would plead guilty to a crime they didn't commit in order to get out of jail on a sentence of "time served."

The only reason these false convictions were discovered was that, eventually, the now-independent crime lab in Houston would test the evidence, anyway. But in Hidalgo County, that doesn't happen. The samples are never sent to DPS, meaning false convictions remain concealed.

Which brings us to the meat of the issue: In the interests of justice, somebody needs to be testing this evidence when it's going to be used to justify depriving someone of their liberty. Whether it's the state or the county that pays for it, who knows? If the government doesn't pay for testing, it should be done on a defense motion. And if nobody wants to pay, perhaps those cases shouldn't be prosecuted at all, plea bargain or no.

* * *

On a tangentially related topic, in the same article, state Rep. Oscar Longoria made the case for charging local governments for crime lab services, making him to my knowledge the only legislator from the budget conference committee to do so:

“You’re going to have an issue when everyone sends stuff (to the lab) — you’re naturally going to have a backlog,” Longoria said.

DPS averaged 87,642 testing requests from 2,310 law enforcement agencies in 2013 and 2014, according to a January Legislative Budget Board Staff Report.

“(The DPS lab) should really only be used for major crimes like murder, homicide and aggravated robbery,” Longoria said. “But when we send Class A and Class B misdemeanors, we’re overburdening the (lab) technicians.”

That's a provocative position to many in Texas law enforcement, some of whom feel particularly entitled to get these services for free, even though most larger jurisdictions pay for their own. Lubbock PD is the biggest DPS crime lab customer, if "customer" is the right word for somebody getting freebies.

As Pfaff's book continues to influence American reform debates, and this was his most important reform suggestion aimed at limiting prosecutor power,* it's worth pulling out this segment as a stand-alone. My podcast partner was more skeptical of the idea, but to me, this may be the only proposal Grits has heard with a real chance of reducing mass incarceration in America to levels more typical of the rest of the western world. Most other potential reforms do not scale up nearly as effectively.

The idea is to make county-level decision makers at least partially responsible for incarceration costs of people they send to prison. Natural policy experiments have shown that, when local decision makers must pay for their incarceration decisions, they incarcerate less. By contrast, under the status quo, counties enjoy perverse economic incentives which make it essentially free to order incarceration in prison for an offender. But they must pay if they choose probation and rehabilitation in the community.

Listen to the excerpted segment here, or find a transcript of our conversation below the jump:

DA: Police must improve before I'll work with them
The Aransas County Attorney won't accept more cases from the Rockville PD until its officers are better trained about deliberately withholding evidence. Good for her! That's a new one. "According to prosecutors, the Rockville officers needs to demonstrate a commitment to truthful reporting and to correcting problematic officer behavior."

Pew: Ban the box increases discrimination against black folk
One of our contributing writers, Amanda Woog, was a big supporter of ban-the-box proposals in Austin and elsewhere, but Grits personally remained more skeptical. This commentary from the Pew Charitable Trusts explains why: the policy heightens discrimination against black people, whether or not they have a criminal record, while mostly white folks benefit. Martin Luther King, Jr. looked forward to a day when people are judged not by the color of their skin but the content of their character. BTB legislation asks employers to overlook evidence of people's character (past criminal acts), leaving them only the color of the applicant's skin as a marker for such concerns. The result is a worsened pattern of discrimination, according to the best available employment studies on the topic.

On the limits of legalizing running over protesters
The Texas state rep who filed a bill limiting criminal and civil liability for drivers who run over protesters wants to distinguish his bill from what happened in Charlottesville. His legislation would not protect an intentional murder, he insisted. But in truth, the bill was a political jab at liberal protesters and, whether the specifics would apply to the driver in Virginia, the intent was unquestionably to send a message to protesters blocking streets that they deserve to die and the government shouldn't protect them or care about their fate. Walking that back in the face of an actual such incident is understandable, but Rep. Pat Fallon doth protest too much.

Greg Kelley exonerated
In the end, Greg Kelley not only had to battle the government, which had falsely convicted him of sexually assaulting a 4-year old based on a shoddy investigation by Cedar Park PD, but his own trial attorney intervening in his case against his interests. Regardless, that lawyer was found ineffective and Kelley has been freed - prosecutors now say the evidence points to an alternative suspect. As an aside, Kelley was released thanks to a 2003 statute carried by Sen. John Whitmire to allow the Tulia drug sting defendants to get out on bail while they waited for their habeas corpus writs to clear the Court of Criminal Appeals. When that passed, we thought it would for the most part only affect those Tulia defendants, but it's become a prominent and important feature of many modern, Texas exonerations.

Prison evacuations
Several thousand TDCJ inmates housed in units along the Brazos River were evacuated because of flooding, something which is becoming more or less an annual event. I haven't seen significant reporting on what happened with inmates in county jails who were housed in the hurricane's path.

Bail industry ramping up against reforms
The bail reform lawsuit in Harris County and bail-reform legislation in New Jersey are the two biggest, bleeding-edge flashpoints for the fight to reduce poverty-based incarceration. In both instances, the bail industry has emerged as a powerful and well-funded, if increasingly isolated, belligerent. They're going to try to Willie-Horton these reforms to death, so it will be more important than ever that advocates continue making the public safety case for bail reform. People who want fewer murders should be on the reformers' side.

Time to test income and reentryProviding an income to ex-offenders would reduce recidivism. The barriers to testing such a strategy on a broader scale are political, but as a practical matter, " It is past time that a government or nonprofit combined a minimally conditional cash transfer with traditional reentry interventions and hire an evaluator to assess the experiment’s impact. While a man exiting prison today might receive job training and see a clinician for mental health needs, an additional cash transfer could enable him to secure a place to live, a mass transit fare, and groceries for his family. Cash—or a restricted, EBT-styled debit card—would provide for immediate needs and ease the stressful reentry process."

Saturday, August 26, 2017

The pension SNAFU in Dallas and anti-taxation sentiment among Houston voters have halted and reversed growth of the number of sworn staff at both police departments, observed the Texas Tribune.

Dallas is where the real problem lies. Seasoned officers are fleeing because pension benefits that promised to make them all millionaires are now all evaporating, while low entry pay makes them uncompetitive with other Texas departments.

Houston's so-called shortstaffing, however, isn't really shortstaffing. The union says they should have 1,000 more officers, but after a one-time loss of about 200 officers before the latest pension deal was cut, they're not witnessing an ongoing exodus like in Dallas. Regardless, Grits believes that it's fine if unsustainable increases in police staffing cease in the wake of two decades of declining crime. There are plenty of officers in both cities, they're just being assigned to work that should be performed by social workers, mental health professionals, civilian techs, call-center employees, code enforcement, robots, the private sector (e.g., answering false burglar alarms), etc..

Redefining police roles and reconsidering 911-driven patrol patterns are the best solutions to perceived shortstaffing. Just increasing the number of the city's most expensive employees ad infinitum in the face of declining crime isn't a sustainable approach.

The measure being suggested to the Public Safety Commission (PSC) essentially implements a specific line item in the Republican Party platform to disallow such arrests except in instances of domestic violence. Under its new leadership, the Texas GOP has been more aggressive, beginning during the most recent special session, in actively promoting its platform policies in the political arena and encouraging GOP pols to adhere to them. So this endorsement continues that new pattern.

Sandra Bland's mother, who prominently campaigned for Hillary Clinton in last year's presidential campaign, is one of the signators on the Just Liberty petition. So the endorsement of the Texas GOP makes this a true, bipartisan affair - a zebra, nearly a unicorn, in the fractious and disjointed world of 21st century politics. Goes to show that it's possible to find bipartisan agreement if the goal is good policy instead of only scoring campaign points.

Just Liberty has been told by the DPS General Counsel's office that members of the PSC will be briefed on the proposal in executive session, so the only opportunity to address commissioners will be during the generic public-comment section at the beginning of the meeting.

As of this writing, nearly 4,500 Texans have sent emails to DPS Director Steve McCraw through Just Liberty's grassroots systems. (Go here to join them.) So the issue has hit a nerve and drawn remarkable bipartisan support, of which the backing of the Republican Party of Texas is the most prominent and notable example yet.

How exciting! Even though it didn't pass, you could tell at the Legislature this suggestion had uncommon legs and significant appeal across party lines. These developments continue to foster that impression. This is a change lots of people believe needs to happen regardless of political party.

Bail reform failed at the Texas Legislature this year, but litigation pending against Harris County may still dramatically alter the landscape regarding judges making pretrial detention decisions based on the ability to pay. (Grits interviewed one of the litigants, Texas Fair Defense Project Executive Director Becky Bernhardt, when the litigation launched last fall.)

Harris County lost Round One in federal district court. While we wait to see what the 5th Circuit thinks about that case, the action on bail reform shifts to New Jersey, where Gov. Chris Christie signed comprehensive bail reform into law last year. The bail bond industry is hitting back hard. See coverage from the NY Times and NBC News.

Reform opponents including the Texas District and County Attorney Association Twitter feed have been touting this case as an example of the failures of risk-assessment systems. In that episode in San Francisco, a court employee entered mistaken data into a risk assessment developed by Texas' Laura and John Arnold Foundation and a released inmate committed a murder.

That is indeed a terrible tragedy. But if a court employee entered flawed data, that's hardly an indictment of the tool. Moreover, nobody said the risk assessment system will never make mistakes, only that it will make FEWER mistakes than human jurists. In the end, flaws in either system can only be judged by answering the question, "Relative to what?"

These are vast human systems prone to error at the margins. Based on various studies by academics and practitioners, Grits has estimated in the past that perhaps 1.5 to 2.5 percent of TDCJ inmates at any given time are actually innocent people falsely convicted. Some of them, like Timothy Cole or Carlos De Luna, may die before they're exonerated. And where there are false positives, there are also false negatives, where people should have been jailed but aren't. In extreme cases, some of them will take the additional opportunity to commit murder. We're talking about an error-ridden system with a change-resistant culture.

But because both risk-based and bail systems can generate errors, the question becomes, "which is more erroneous?" And the answer is the money bail system by a country mile.

A study out of Texas A&M comparing Tarrant County's money bail system to a risk-based system in Travis County found that 7.5 percent of those released on bail committed a violent felony while they were out compared to 4.9 percent under a risk-based system. Victim costs were also much lower under the risk-based system.

Page 50 of that report includes a table with more detail. Under Tarrant's money-bail system, 4.6 percent of those out on bail allegedly committed a violent assaultive offense, compared to 3.6 percent under a risk-based system. Similarly, 2.1 percent released on bail in Tarrant allegedly committed robberies, compared to 0.8 percent in Travis. So the risk assessment system doesn't always identify potential problems, but it does a better job than human judges.

To the point of the case out of San Francisco involving the Arnold Foundation risk assessment, the A&M study found that 0.2 percent of defendants released on money-bail in Tarrant during this period committed homicides, compared to 0.0 percent in Travis. That's about 18 murders over the 3.5 year period studied, which for the record is more than zero.

But, even if there had been a homicide or two committed by pretrial releasees in Travis County under the risk assessment model, any criticism must be couched in some context: Compared to what? Are we judging based on a comparison to outcomes under the money-bail status quo, which are much worse? Or are we comparing to some Platonic ideal/fantasy where no one released pretrial ever commits a new offense or fails to show up for court? Every system looks terrible compared to the fantasy. But if we're picking the best among real-world options, errors under the risk assessment model are more tolerable.

If one murder by a pretrial releasee is hyped by reality TV stars and heavily covered by the media, while 18 murders under the money bail system in a single Texas county get no coverage at all, that doesn't mean all the problems lie on the risk assessment side. It just means the bail-bond side is more adroit than reformers at PR.

A risk assessment tool does what it says, assesses risk. It does not eliminate risk. And it is not a crystal ball. Moreover, as they're implemented, tools should and inevitably will be constantly evaluated and tweaked to improve performance. We're at the beginning of this conversation, neither the Arnold Foundation assessment nor any other represents the last word on what these tools will finally look like.

But even at these early stages, it's possible to identify and dismiss disingenuous and self-interested criticisms, particularly those which ask us to judge risk-assessment errors in a context-free environment. When confronting a problem as decentralized, vast, and flawed as American mass incarceration, it's important not to allow the perfect to become the enemy of the good.

Sunday, August 20, 2017

Here are a few odds and ends that may interest Grits readers while I'm focused elsewhere:

3,500 and counting support Just Liberty petition to limit trooper arrests
With the Public Safety Commission scheduled to consider the petition for rulemaking from Just Liberty and 15 allied organizations on Thursday, more than 3,500 Texans so far have emailed DPS Director Steve McCraw in support of more restrictive arrest policies for Class C misdemeanors. Go here to join them.

Prisons and rural economies: A case study
Prisons prop up the economies of small towns which otherwise would not have enough employment for those who live there. Palestine, with five nearby units employing 2,645 people, is a prime example. In the early '90s, then-Gov. Ann Richards touted tripling the size of the prison system as a means of rural economic development which she hoped would help stave off a GOP takeover of the state. Rural voters welcomed her investment but rejected her politics, voting for George W. Bush in the 1994 election. Meanwhile, the prison bonds she championed financed prison construction throughout the rest of the decade. In recent years, Texas has closed eight prison units, but most of them have been in areas where the local economy had shifted to other industries. Where locals rely on prisons as primary employers, closing them remains difficult.

Critics of Austin police dominated a city budgeting session Thursday evening as the City Council heard from scores of residents on what 2018 financing priorities should be.

Those should be less money for policing and more money for social services, a large group of activists argued. They urged the council to abandon contract negotiations with the police union and instead return to funding police annually without a multiyear union contract ...

The Austin Justice Coalition, a nonprofit organization focused on helping minorities, outlined eight changes it wants to see made to how police misconduct cases are handled. They include considering past misconduct in future discipline, eliminating the statute of limitations for discipline, considering misconduct in weighing promotions and stopping the practice of sealing officer misconduct files.

The group said the current police contract protects misconduct and rewards a policing system in need of reform.

'How the poor get locked up and the rich go free'
An LA Times editorial included a discussion of Harris County's bail litigation.

Judges fumbling forensics decisions
Judges keep allowing disavowed science into evidence. Texas' junk science writ might help wrongfully convicted defendants seek relief on the back end, but only judges can prevent non-probative, non-scientific "forensic" analysis into evidence in the first place. The framework from the Daubert case, which laid out modern standards for admitting expert testimony, has simply broken down in the wake of evidence that many forensic methods are less reliable than long assumed. It simply doesn't provide enough leeway for judges to exclude non-probative testimony even after its falsity has been established. E.g., in Just Liberty's Reasonably Suspicious podcast the other day, we discussed a case where forensic DNA analysts excluded a suspect using one analysis while those using another type of mathematical calculation, based on the exact same data, matched the suspect. The 12th Court of Appeals said the solution was to let in both results into evidence and let the jury decide! That's hardly playing much of a "gate keeper" function.

On the latest Reasonably Suspicious podcast, I interviewed Emily Gerrick, a staff attorney with the Texas Fair Defense Project specializing in policies surrounding people jailed for traffic-ticket debt. We only used a 5-minute segment for the podcast, so here's our full conversation for those interested, ranging from recently passed reform bills, jailing drivers for failure to pay tickets, the ignominious Driver Responsibility surcharge, and what local municipal court judges and Justices of the Peace can do to minimize debtors prison practices under current law.

Listen to the full interview here or read a transcript below the jump:

Friday, August 18, 2017

Our latest "Reasonably Suspicious" podcast segment, Death and Texas, has sparked a number of lively, behind-the-scenes discussions, so I thought I'd pull it out as a stand-alone and provide links to a number of related, relevant resources. The topic: A ruling out of Kentucky finding that execution of defendants who committed their crimes before they were 21 years old violates the Eighth Amendment to the US Constitution, building on the holding in Roper v. Simmons. A majority of cases so situated come from Texas in recent years. You can listen to the full (5 minute) discussion here.

The Texas Municipal Courts Education Center has issued a summary of new debtors-prison reform legislation (HB 351/SB 1923) as well as guidance related to various laws governing expunction of juvenile records. Check them out here.

RELATED: In the latest Reasonably Suspicious podcast (beginning at the 12:08 mark), I interviewed the Texas Fair Defense Project's Emily Gerrick on what local judges can do beyond that new law to limit debtors-prison practices in Texas. I asked Edward Spillane, Presiding Judge of municipal courts in College Station, for his thoughts on her suggestions, and here's how he replied:

Emily made a number of excellent points. I'm excited that the new legislation will encourage a broader use of the waiver and community service processes judges have. I wish the surcharge program had gone away but now judges can end more easily the financial burdens defendants face from fines, fees and drivers license holds. I would include particularly Indigent defendants but also those defendants struggling with other hardships such as mental illness or a loss of a loved one, a family member who is sick or any other strain making it hard for defendants to carry out their sentence. The new legislation also mandates that courts are a safe haven for those under warrant and who come to court. That is a big step along with the various new procedures courts must perform before issuing failure to appear or capias pro fine warrants. Progress may seem slow but these legislative changes will make all our courts more just and fair places for citizens.

In a few days, I'll post the full interview with Ms. Gerrick, which was informative and educational on several levels.

Tuesday, August 15, 2017

Just Liberty's latest "Reasonably Suspicious" podcast for August features discussions of important issues and fresh ideas confronting Texas' criminal justice system. (This is the last episode in our summertime "soft launch" before promoting the show more widely beginning in September.) Listen to the podcast here, or read a transcript below the jump:

Sunday, August 06, 2017

Last month, a Grits post highlighted provisions in the Austin and Houston meet and confer contracts which gave police officers extra pay for time they spend testifying in court. In Houston, courts found this gave officers an incentive to make arrests on bogus DWI cases so they could make extra money - often quite a bit more than their base pay - in overtime for court appearances. And Austin's overtime pay for court appearances is even more generous.

Now, a budget response to questions by Austin Mayor Steve Adler about the drivers of overtime expenditures and police budget costs supplies light on the subject from a different angle. According to the city manager's response,

In 2016, overtime per sworn officer at APD was $11,647, up from $8,108 per officer in 2014.

Adler asked what was driving costs and overtime use at Austin PD. Looking beyond base officer pay, which in Austin steps up quickly with seniority to make them among the highest-paid officers in the state, the biggest over-time related item listed among the cost drivers was "Contract mandated Court overtime for police officers." That was the third largest item in an "other" category of cost drivers which included "Retirement" and "Health Insurance."

So, although we can't say from these data what proportion of overtime expenditures is due to court appearances (as opposed to callbacks or other, more mundane sources of overtime), overtime costs for court appearances have clearly mounted and now represent a significant sum.

I don't understand the Trump Administration's position on the Drug War at all. Grits was under the impression that "beleaguered" Attorney General Jeff Sessions was ramping it back up, but then we see that the Administration apparently supports methadone treatment for addicts in county jails. From the New York Times:

maintenance treatments like methadone, if uninterrupted, are proven to reduce arrests and increase employment, and for many with addiction are the only thing that works. In July, a White House commission on opioid addiction called for increasing inmates’ access to addiction medication.

Somebody help me out here, I can't keep track any more: is that a liberal or a conservative position?

Grits also wanted to flag a medication being used on addicts in jails (or more often, as they are discharged), of which I hadn't previously heard:

A growing number of jails, especially in rural areas, have opted to treat inmates not while they are in jail, but on the way out, giving them a one-time shot of a newer medication, Vivitrol, as they are released. Vivitrol, which unlike methadone and Suboxone is not a narcotic and has no street value, blocks opioid receptors in the brain, making getting high nearly impossible. It is far more expensive, and far less proven, than methadone and Suboxone, but its manufacturer often gives it to jails free. Its effect lasts about a month.

Saturday, August 05, 2017

Last month's Reasonably Suspicious podcast from Just Liberty featured a new segment titled "Suspicious Mysteries" which focuses on questions to which there are no definitive answers. The topic this time: possible reasons why deaths in police custody in Texas doubled from 2005 to 2015, then steeply declined in 2016. A friend in another city asked if I could pull the 4-minute segment out as a stand-alone for use by advocates, so here you go:

Speaking of critically important narratives which can determine the outcomes of cases, jury instructions that tell jurors to search for "truth" instead of "reasonable doubt" result in higher conviction rates, a new study found.

In the federal system, "criminal defendants who are released pending trial earn a roughly 72 percent decrease in sentence length and a 36 percentage-point increase in the probability of receiving a sentence below the recommended federal sentencing Guidelines range," a recent paper found.

Thursday, August 03, 2017

In the past couple of years, we've heard a lot about the so-called "Ferguson effect," where cops supposedly react to public criticism by failing to do their jobs and intentionally allowing crime to flourish. Grits has expressed skepticism that that's really the attitude of the cop on the beat, but regardless, it's a common meme.

What's less commonly discussed is the reverse problem: when police misconduct goes unpunished, resulting in a loss of trust by the community and a failure to report crimes for fear of interaction with the cops. A Columbia Law Review article by Tracey Meares includes this summary of some recent research on exactly how that occurs:

In a recent study, Professors Matthew Desmond, David Kirk, and Andrew Papachristos present an example of how researchers can use such data. The researchers studied how police brutality against unarmed Black men affects cities and the Black community in particular by examining whether there was a change in the number of 911 calls in Milwaukee before and after a highly publicized incident of police violence against an unarmed Black man, Frank Jude. Jude was attacked by several White police officers in October 2004 after they accused him of stealing a police officer’s badge at a party. The officers stomped on his face with heavy boots and punctured his eardrums with pens. After the incident, Jude’s photo was shown in the newspaper demonstrating his extensive injuries. The results of the researchers’ analysis of 911 calls surrounding this incident are startling. After Jude’s beating was reported in the local press, Milwaukee residents—and especially residents of Milwaukee’s Black neighborhoods—were less likely to report crimes by calling 911. The magnitude of the crime-call decline in Milwaukee was large and long lasting. It persisted for over a year, “result[ing] in a loss of approximately 22,200 911 calls, a 17 percent reduction in citizen crime reporting, compared with the expected number of calls.” Moreover, the “missing” calls were primarily confined to the areas of Milwaukee in which mostly African Americans lived. After a year, the number of calls went up again.

Wednesday, August 02, 2017

Police shootings in Houston may not directly result from racial bias, according to academic analyses of data from Houston PD, but they do occur in a statistically discriminatory fashion. That's because officers' intent cannot be proven but the results are wildly disparate. This excerpt from a new academic article from Jeffrey Fagan and Daniel Richman described the two analyses and how they differ:

Research by Professor Roland Fryer examining police use of force in Houston, one of the nation’s largest cities, shows a nearly 50% greater incidence of use of force by police in encounters with Black or Latino persons but no disparity by race in shootings by police. Justin Feldman’s subsequent analyses of Professor Fryer’s Houston results showed that, in fact, Blacks were nearly five times more likely to be shot relative to Whites and Latinos were nearly twice as likely to be shot relative to Whites. Professor Fryer searched for evidence of racial bias in police shootings in Houston, using statistical models to identify intentional bias. He found none. Feldman’s analyses of the same data examined statistical discrimination — or disparate treatment of Black and Latino suspects by police in their use of force — and showed large racial disparities. Overall, the evidence of racially disparate police enforcement across cities reinforces longstanding beliefs among Black citizens about disparate treatment at the hands of the police and helps spread a narrative of an uneven burden that Black citizens bear in police–citizen encounters.

The authors explain the two studies' different conclusions by pointing out that they were analyzing two different things - "statistical discrimination" vs. "racial bias" - offering this explanation in a footnote: "Statistical discrimination reflects differences in the rates of an event by race, after controlling for race-specific and plausible nonrace factors that might explain such differences. Racial bias looks for evidence of intent to discriminate, independent of evidence of racial disparities."

If the outcome is that discriminatory ("Blacks were nearly five times more likely to be shot relative to Whites"), it's hard to know whether the public should be comforted by the concurrent finding that the discriminatory outcomes weren't generated by "bias." In essence, Prof. Fryer was positing HPD officers' good intentions, while Prof. Feldman lamented that they were the type with which the road to Hell is paved.

Tuesday, August 01, 2017

Without a doubt, creation of the nation's first Conviction Integrity Unit (CIU) at a District Attorney's office was the most important legacy of former Dallas DA Craig Watkins' brief but eventful career as a Texas prosecutor. Check out a feature in The Atlantic praising the CIU in Philadelphia. This was a Texas innovation which has been mimicked far beyond our borders:

Today there are about 30 units, largely clustered in the Northeast, California, and Texas, according to Hollway. Roughly half were created after 2013, and their track records vary: Since the Philadelphia unit was created in 2014, Thomas’s case is the first and only one it’s thrown out. By contrast some of the most robust—such as those in Dallas, Houston, and Brooklyn—have thrown out dozens.

Conviction Integrity Units in Texas have mostly usurped the old model of innocence clinics at law schools, which are these days responsible for a tiny fraction of the total discovered innocence cases compared to what comes out of the CIUs.

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"Grits really shows the potential of a single-state focused criminal law blog"

- Corey Yung, Sex Crimes Blog

"I regard Grits for Breakfast as one of the most welcome and helpful vehicles we elected officials have for understanding the problems and their solutions."

Tommy Adkisson,Bexar County Commissioner

"dude really has a pragmatic approach to crime fighting, almost like he’s some kind of statistics superhero"

- Rob Patterson, The Austin Post"Scott Henson's 'Grits for Breakfast' is one of the most insightful blogs on criminal justice issues in Texas."

- Texas Public Policy Foundation

"Nobody does it better or works harder getting it right"

David Jennings, aka "Big Jolly"

"I appreciate the fact that you obviously try to see both sides of an issue, regardless of which side you end up supporting."

Kim Vickers,Texas Commission on Law Enforcement Officer Standards and EducationGrits for Breakfast "has probably broken more criminal justice stories than any TX reporter, but stays under the radar. Fascinating guy."

Maurice Chammah,The Marshall Project"unrestrained and uneducated"

John Bradley,Former Williamson County District Attorney, now former Attorney General of Palau

"our favorite blog"

- Texas District and County Attorneys Association Twitter feed"Scott Henson ... writes his terrific blog Grits for Breakfast from an outhouse in Texas."